Since submitting their signed petitions to place language for a legal defense fund on the November ballot, members of Citizens for Orderly Growth (COG) have waited patiently for opinions from attorneys.
Now, the wait is almost over.
On Tuesday, Independence Township Supervisor Dave Wagner released an opinion from attorneys with the Michigan Townships Association (MTA) concluding the proposed legal defense fund ballot language ‘has serious deficiencies and infirmities, and would not successfully pass legal challenge.?
The opinion is dated Aug. 16 and responds to seven specific questions from the township board.
The legal defense fund language asks for a one-time, half-mill tax that would raise $750,000 plus interest. The township could use these funds to pay legal fees if a developer challenges the master plan in court. A copy of a petition COG circulated to support an election on the language is below.
According to the opinion from Bauckham, Sparks, Rolfe, Lohrstorfer and Thall, the township can use a millage to create a legal defense fund and that fund can be used even in regards to an appeal of a Zoning Board of Appeals or Planning Commission denial.
However, several points within the proposal are problematic to the MTA attorneys. For example, the opinion did not find the language ‘specific enough to avoid court invalidation due to misleading content.?
Also, the MTA attorneys believe the requirement for a referendum in the language is a ‘serious flaw.? Attorneys state ‘there is no statutory authority for a township to have a referendum on a consent judgement or a proposed consent judgement.?
In the opinion, this fact leads to later problems. The language calls for the township to return any monies used to the legal defense fund in the case of a settlement without referendum. Since the attorneys found the township not bound by a referendum, returning the funds can not be upheld.
Finally, if the township were to use the legal defense fund to follow through with a court case, and lose, the fund could not be used to cover any damages incurred.
?’while we believe it is legally possible for a township to seek township elector approval to raise extra millage for a legal defense fund, we believe that the ballot proposal submitted with your letter has serious deficiencies and would not successfully pass legal challenge,? the opinion states.
‘I wish to thank COG for their commitment to the township. It is most beneficial when citizens express their opinions and ideas to the township board,? said Wagner is a released statement on Tuesday. ‘I appreciate the input and concern of COG members pertaining to our master zoning plan and how to uphold the future vision of the township.?
At the Aug. 16 regular board meeting, Wagner made a well received announcement when he was ‘given permission? from Orco Investments, Inc. to briefly relate plans regarding a 70-acre parcel of land located near the intersection of I-75 and Sashabaw Road.
‘Wal-Mart is not happening,? said Wagner at the meeting. ‘No big box is happening on that property at all.
‘Nothing has been submitted. I can’t tell you what the project will be, but no big boxes. No big boxes at all,? assured Wagner.
Wagner confirmed in a later interview that township officials have been in talks with Orco for the past five months.
‘I have been asking to release that information for quite some time,? said Wagner. ‘Five months ago, they (Orco Investments) realized the seriousness of the township board. They realized they would have a big fight on their hands.?
However, COG member Neil Wallace credits the threat and publicity of a proposed legal defense fund with deterring the developer.
‘This is a clear demonstration that the legal defense fund works,? said Wallace. ‘As soon as all of this got out there through the community and through the press, the developer unilaterally chose to withdraw his plans.?
Wallace also received a copy of the opinion and Wagner’s released statement on Tuesday. After a brief read through the documents, he argued a couple points.
First, he believes the MTA attorneys made an error in the law when they claim no case law stands in reference to the referendum.
In fact, at the last township board meeting, Wallace made the offer for the board to remove the referendum requirement from the language.
‘If you don’t like it, take it out,? he stated.
Second, Wallace emphasized that reimbursing the legal defense fund is not a requirement.
‘It’s intentionally set this way to give the board control,? he stated in an interview Tuesday morning.
‘These two minor things could easily be worked out through a dialogue,? Wallace said. ‘I don’t think the board is interested in a dialogue on this. They’ve been looking for a way to take this off the table, and they’ve found one.?
Wagner stated he expects Orco Investments to withdraw their current rezoning request and submit a new one in the coming week.
He announced in his statement that the ballot language proposal will be on the Sept. 6 meeting agenda.